Public Employee Fired for Releasing Information to Reporter May Proceed on Section 1983 Retaliation Claim

On April 2, the Fourth Circuit ruled that a former Baltimore Police Department officer’s Section 1983 civil rights claim based on violations of his First Amendment rights may proceed.  The Fourth Circuit reversed and remanded the district court’s order dismissing the freedom of speech claim.  Specifically, the Fourth Circuit held that the plaintiff alleged facts sufficient to pursue his claim that the defendants, including the current and former police commissioners, violated the plaintiff's First Amendment rights by retaliating against him for releasing an internal memorandum to a reporter for the Baltimore Sun.

In Andrew v. Clark, No. 07-1184, slip op. (4th Cir. Apr. 2, 2009), the plaintiff (Andrew) was a major in the BPD and was on the scene and on duty during an incident in which a BPD tactical unit shot and killed a suspect who had killed his landlord and barricaded himself in his apartment.  Andrew was not the senior officer on the scene, and he questioned whether the incident had been properly handled because the suspect had no hostages and had not threatened additional violence.

In his Complaint, Andrew alleged that after the shooting he repeatedly asked to be included in an internal review and investigation of the incident, but was not.  Andrew alleges he then submitted to former BPD police commissioner Clark a memorandum that requested an investigation to determine whether the use of deadly force by the BPD tactical unit against a barricaded suspect was justified and properly conducted.  Andrew contends his memorandum was ignored.  Out of his “concern for public safety,” Andrew says he then released the memorandum to a reporter for the Sun, who reported on the memorandum and the incident.  Ultimately, the BPD terminated Andrew’s employment.

Much of the Fourth Circuit opinion focused on whether Andrew had alleged sufficient facts to assert that he did not write the memorandum as a duty of his employment as a BPD officer.  This fact was important because of limitations on public employees’ freedom of speech rights. The law related to speech by public employees is set out, in part, in Garcetti v. Ceballos, 547 U.S. 410 (2006), and was discussed by the Fourth Circuit:

In setting forth the basis for its conclusion that Andrew had failed to assert facts that would support a claim for a violation of his First Amendment rights, the district court accurately summarized the rule announced in Garcetti as follows: "[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and therefore are not insulated from ‘managerial discipline’ based on such statements." The district court failed, however, to recognize that the Supreme Court also stressed in Garcetti that "the parties in this case do not dispute that [the plaintiff] wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework of the scope of an employee’s duties in cases where there is room for serious debate." Accordingly, because the parties do not agree that the facts demonstrate that Andrew wrote his memorandum as part of his official duties, contrary to the district court’s conclusion, the facts alleged in Andrew’s second amended complaint do not "render Garcetti wholly applicable." At this stage of the proceedings in this matter, we must conclude that there is "room for serious debate" regarding whether Andrew had an official responsibility to submit a memorandum regarding the Smith shooting. (citations omitted)

The evidence in the record at this stage of the case—the motion to dismiss stage—asserted that Andrew was under no duty to write the memorandum.  (The district court wrote that Andrew conceded that writing the memorandum was part of his job, but at oral argument, defendants’ counsel told the Fourth Circuit panel that was not so.)  Therefore, according to the Fourth Circuit, Andrew’s speech may be protected by the First Amendment, subject to the requirements of Pickering v. Board of Education, 391 U.S. 563 (1968).  Whether Andrew could show that the speech was “citizen speech” about a matter of public concern or whether the publication of the memorandum “affected the operation of the BPD,” as required by Garcetti and Pickering, had not been answered by the district court and could be tested upon summary judgment motions.

It remains to be seen whether Andrew’s release of the memorandum to the Sun will be considered protected speech—stay tuned.

The concurring opinion authored by Judge Wilkinson does an excellent job of putting the Andrew opinion in context and explains why the outcome at this stage is a win for the media.  Here is a excerpt (but we recommend you read the entire concurrence):

To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government. And those effects would be felt at a particularly parlous time. It is well known that the advent of the Internet and the economic downturn have caused traditional news organizations throughout the country to lose circulation and advertising revenue to an unforeseen extent. As a result, the staffs and bureaus of newsgathering organizations—newspapers and television stations alike—have been shuttered or shrunk. Municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit. The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times, because such reports take time to develop and involve many dry (and commercially unproductive) runs. And in these most difficult of times, not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged. So, for many reasons and on many fronts, intense scrutiny of the inner workings of massive public bureaucracies charged with major public responsibilities is in deep trouble. . . . [T]he First Amendment should never countenance the gamble that informed scrutiny of the workings of government will be left to wither on the vine. That scrutiny is impossible without some assistance from inside sources such as Michael Andrew. Indeed, it may be more important than ever that such sources carry the story to the reporter, because there are, sad to say, fewer shoeleather journalists to ferret the story out.

Illinois Governor Charged with Shaking Down Tribune

U.S. Attorney Patrick Fitzgerald released a sealed indictment and supporting affidavit against Illinois Governor Rod Blagojevich Tuesday after Blagojevich was arrested on a wide range of corruption and "pay-to-play" charges.  Public attention has focused thus far on the first count, which accuses Blagojevich of attempting to leverage his power to appoint President-Elect Barack Obama's successor to the U.S Senate into cash and campaign funds, a choice appointment of his own, or a substantial salary for himself or his wife on a foundation or corporate board.

Fitzgerald called the charges against Blagojevich "a truly new low" and "conduct [that] would make Lincoln roll over in his grave."  In a press release issued on Tuesday, Fitzgerald described the allegations against Blagojevich as follows:

The breadth of corruption laid out in these charges is staggering.  They allege that Blagojevich put a "for sale" sign on the naming of a United States Senator; involved himself personally in pay-to-play schemes with the urgency of a salesman meeting his annual sales target; and corruptly used his office in an effort to trample editorial voices of criticism.  The citizens of Illinois deserve public officials who act solely in the public's interest, without putting a price tag on government appointment, contracts and decisions.

Peddling a U.S. Senate seat as if it were detritus at a Saturday morning yard sale is clearly a serious, serious charge.  However, the second count against Blagojevich should be particularly troubling to editors and reporters -- it accuses Blagojevich and his chief of staff John Harris of threatening to withhold public financing for Wrigley Field if the Tribune Company did not fire certain members of the Chicago Tribune editorial board who were particularly critical of Blagojevich and his administration.

The allegations against Blagojevich -- many of which stem from conversations overheard as part of a court-approved wiretap -- are detailed in a 76-page affidavit that accompanied the indictment.  The Tribune Company had apparently explored in recent months the possibility of securing assitance from the Illinois Finance Agency in connection with the company's efforts to sell the Chicago Cubs and with the financing or sale of Wrigley Field, where the Cubs play. 

Harris apparently explained to Blagojevich that an IFA deal would save the Tribune Company approximately $100 million.  In a phone call intercepted on November 4, Blagojevich allegedly told Harris that he should tell upper manangement within Tribune that "our recommendation is fire all those [expletive] people, get 'em the [expletive] out of there and get us some editorial support."  On November 6, in another intercepted call, Harris told Blagojevich that the previous day he had informed a person described as "Tribune Financial Advisor" that things "look like they could move ahead fine but, you know, there is a risk that all of this is going to get derailed by your own editorial page."  In an intercepted call on November 11, Harris told Blagojevich that Tribune Financial Advisor had talked to a person described as "Tribune Owner" and that Tribune Owner "got the message and is very sensitive to the issue."  Harris said further that, according to Tribune Financial Advisor, "certain corporate reorganizations and budget cuts [would be] coming and, reading between the lines, he's going after that section."  Blagojevich's alleged response was "Oh.  That's fantastic" and "Wow.  Okay, keep our fingers crossed.  You're the man."  Thereafter, Blagojevich is alleged to have held a series of conversations with Cubs representatives concerning IFA financing for Wrigley Field.

These allegations are particularly troublesome for media organizations because, if true, they provide a stark example of government retailation on the basis of protected First Amendment speech.  Such retaliation itself violates the First Amendment.  For example, the Second Circuit has held:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003).  Another federal appeals court has held that a plaintiff must prove the following elements in order to make out a First Amendment retaliation claim:

[1] his speech or act was constitutionally protected; [2] the defendant’s retaliatory conduct adversely affected the protected speech; and [3] a causal connection [existed] between the retaliatory actions and the adverse effect on speech.

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).  A "causal connection," in turn, exists when:

the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.

Bennett, 423 F.3d at 1254.

First Amendment retaliation claims have most commonly arisen when a local government body terminates a public contract with a publisher (such as a contract to provide legal advertising on behalf of the local body) because of unfavorable editorial coverage.  See North Mississippi Communications, Inc. v. Jones, 951 F.2d 652 (5th Cir. 1992); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 1999); Review Publ’n, Inc. v. Navarro, 19 Media L. Rep. 1337 (S.D. Fla. 1991).  Nevertheless, a strong argument can be made that the facts set out in the Blagojevich indictment and supporting affidavit -- the threat to withhold $100 million in financing to the financially strapped owner of a prominent newspaper -- would likely chill speech, even if the threat were never formally carried out.

The charges against Blagojevich therefore serve as an important reminder that you should always be vigilent about efforts by government officials to shape your reporting or editorializing through threats of any sort.  Those efforts may give rise to a legal claim against the official.  It also underscores that the broader a publisher's financial exposoure, the more pressure points the publisher may have for politicians to try to exploit.